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Law

HI Senate Bill 2275

Notary Law Update: HI Senate Bill 2275

State: Hawaii

Summary:

Senate Bill 2275 enacts portions of the Revised Uniform Law on Notarial Acts (RULONA), authorizes remote online notarizations, and makes other changes to Hawaii’s Notary Public statutes.

Signed:  September 15, 2020

Effective:  January 01, 2021

Chapter: Act No. 054

Affects:
Creates as yet new uncodifed sections in, and amends Sections 456-1, 456-2, 456-3, 456-4, 456-5, 456-6, 456-7, 456-8, 456-9, 456-9.5, 456-14, 456-15, 456-17, 456-19, 456-20, 456-21, 502-42, 502-48, 502-72 and repeals Section 456-16 of the Hawaii Revised Statutes.Changes:

Definitions

  1. Defines “acknowledgment”, “communication technology”, “document”, “electronic”, “electronic signature”, “foreign state”, “identity proofing”, “in a representative capacity”, “notarial act”, “notary public”, “outside the United States”, “remote online notary public”, “remotely located individual”, “sign”, “stamping device”, “tamper-evident”, and “verification on oath or affirmation”.
  2. Amends the definition of “proof of the signer’s signature and identity” as satisfactory evidence of the identity of an individual appearing before a Notary by means of: (a) personal knowledge of the identify of an individual before the officer if the individual is personally known to the Notary through dealings sufficient to provide reasonable certainty that the individual has the identity claimed; (b) a passport, driver's license, or government issued nondriver identification card that is valid or expired not more than three years before the performance of the notarial act and contains the signature and photograph of the individual; (c) another form of government identification issued to an individual that is valid or expired not more than three years before performance of the notarial act, contains the signature and photograph of the individual, and is satisfactory to the Notary; or (d) verification on oath or affirmation of a credible witness personally appearing before the Notary and known to the Notary or whom the Notary can identify on the basis of a passport, driver’s license, or government issued nondriver identification card that is valid or expired not more than three years before performance of the notarial act; or (e) requiring an individual to provide additional information or identification credentials necessary to assure the Notary of the identity of the individual.
  3. Repeals the definition of “personally knowing”.

Notary Public Commission

  1. Clarifies that the failure to renew a commission in a timely manner shall (under previous law, “may”) cause a Notary’s commission to be forfeited.
  2. No longer requires an applicant for a Notary commission to possess the other qualifications required of public officers, but rather to possess the other qualifications required of a Notary Public.
  3. Clarifies that before being commission as a Notary Public, an applicant for a Notary commission must take and subscribe the oath for the faithful discharged of the person’s duties.
  4. Clarifies that the requirements related to a Notary’s bond in HRS 456-4 also includes a bond continuation certificate.
  5. Requires the Attorney General to charge electronic processing service fees of up to 10% of the amount of the transaction.

Notarial Acts

  1. Authorizes Notaries to certify copies (note: see the definition of "notarial act" in HRS 456.16).
  2. Authorizes a Notary to perform a notarial act under HRS chapter 456 and any other Hawaii law except when the Notary or the Notary's spouse or civil partner is a party or in which either of them has a direct beneficial interest, and further provides that a notarial act performed when this is the case is voidable.
  3. Authorizes a Notary to certify that a tangible copy of an electronic document is an accurate copy of the electronic document.
  4. Authorizes a Notary to refuse to perform a notarial act if the Notary is not satisfied that; (a) the person executing the document is competent or has the capacity to execute the document; (b) the person's signature is knowingly and voluntarily made; or (c) the Notary has proof of the signer's signature and identity or, if the person is a remotely located individual, satisfactory evidence of the identity under HRS 456-B (note: codified statute number not yet assigned).
  5. Authorizes a Notary to refuse to perform a notarial act unless refusal is prohibited by law other than HRS chapter 456.
  6. Clarifies that the certificate of notarial act completed when the Notary signs for a disabled person under HRS 456-19 must be attached to the document.
  7. Clarifies that a Notary who knowingly notarizes a document and fails to verify identity of the signer by proof of the signer’s signature and identity, or by obtaining satisfactory evidence of identity of a remotely located individual under HRS 456-B commits the offense of failure to verify identity.
  8. Clarifies that for an acknowledgment of a conveyance or other instrument whereby real estate is conveyed or may be affected the Notary, if the Notary identifies the person with an identification document issued by the United States, Hawaii, any other state, or a national government that contains the bearer's photograph and signature, that identification must be valid. (Note: the new definition of satisfactory evidence in new law allows an identification credential to be valid or not expired by more than three years. It would appear that if a conveyance or other document affecting real property is notarized, the Notary may not accept an ID that has expired.)

Notary Seal

  1. No longer allows a Notary to keep an engraved seal of office, but requires the official seal used on a tangible document to be a rubber stamp.
  2. Permits Notaries to keep an electronic seal that is attached to or logically associated with an electronic document.
  3. Requires the Notary seal to be capable of being copied together with the document to which it is stamped, impressed, or attached, or with which it is logically associated.
  4. Provides that if a notarial act regarding a tangible record is performed by a Notary, an official stamp shall be affixed to or embossed on the certificate, and clarifies that a violation to do so is a misdemeanor and results in automatic revocation of the Notary’s commission.
  5. Provides that if a notarial act is performed regarding a tangible record by a Notary and the certificate contains the information specified in HRS 456-21, an official stamp shall be affixed to the certificate, and clarifies that a violation to do so is a misdemeanor and results in automatic revocation of the Notary’s commission.
  6. Provides that if a notarial act regarding an electronic record is performed by a Notary and the certificate contains the information specified in HRS 456-21, an official stamp shall be attached to or logically associated with the certificate, and clarifies that a violation to do so is a misdemeanor and results in automatic revocation of the Notary’s commission.
  7. Provides that If a Notary has used an electronic stamping device, upon resignation, death, expiration of term of commission without renewal, or revocation or abandonment of commission, the Notary shall disable the electronic stamping device by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable and shall submit a declaration to the Attorney General that the electronic stamping device was disabled and state the date and manner in which the device was disabled.
  8. Repeals the prior penalty of $200 for the Notary's personal representative’s failure to comply with HRS 456-3 (relating to the Notary seal) within 90 days of the Notary's death.
  9. Provides that a Notary’s electronic seal is not subject to the requirements of HRS 456-4 (relating to filing a sample of the seal with the clerk of the circuit court).
  10. Provides that the Attorney General may impose and collect an administrative fine of $200 for a Notary’s failure to disable the Notary's electronic stamping device within 90 days of resignation, revocation of commission, or the expiration of a term without renewal.

Certificate of Notarial Act

  1. Removes from the administrative fine of $200 that may be imposed on a Notary for the Notary’s failure to describe in close proximity to the acknowledgment or jurat certificate the document being notarized, state the number of pages, and date of the document.
  2. Removes from the offense of failure to authenticate with a certification statement a Notary’s knowing notarization of a document and failing to describe in close proximity to the acknowledgment or jurat certificate the document being notarized, state the number of pages, and state the date of the document in the Notary’s certification, but adds the requirement of a Notary including the date of expiration of the Notary's commission.
  3. Clarifies that an acknowledgment certificate under HRS 502-42 must state in substance that the person was personally known to the Notary, identified by a credible witness, or identified by satisfactory evidence under Hawaii law.

Notary Journal

  1. Replaces the term “record book” with “journal” throughout the statutes.
  2. Retains the requirement that a Notary record each notarial act in a journal, but no longer requires a Notary to record “at length” a notarial act in the Notary’s journal.
  3. Requires a Notary to retain the Notary’s journal for 10 years after the performance of the last notarial act chronicled in the journal.
  4. Provides that a journal may be created on a tangible medium or in an electronic format.
  5. Provides that if the journal is maintained on a tangible medium, it must be a permanent, bound register with numbered pages. 
  6. Provides that if the journal is maintained in an electronic format, it must be in a permanent, tamper-evident electronic format complying with the rules of the Attorney General.
  7. Permits a Notary to maintain only one tangible journal at a time to chronicle all notarial acts performed regarding tangible documents and one electronic journal at a time to chronicle all notarial acts performed regarding electronic documents. 
  8. Requires an entry in the journal to be made contemporaneously with the performance of the notarial act.
  9. No longer requires the journal entry to state the manner in which the signer was identified, but to state: (a) that personal knowledge was used to identify the person if personal knowledge was used, or (b) a brief description of the method of identification and the identification credential presented, if any, including the identification number and date of expiration of any identification credential if identification is based on satisfactory evidence.
  10. Clarifies that a signature of each person whose signature is notarized is required in the journal only if the journal is maintained in a tangible medium.
  11. Requires the fee charged by the Notary, if any, to be recorded in the journal for each notarial act.
  12. Authorizes a Notary having the care and custody of the journal to cause the journal to be photographed, microphotographed, reproduced on film, or copied to an electronic format and that any device or electronic storage system used to copy or reproduce the journal shall accurately reflect the information in the original in all details.
  13. Clarifies that a photograph, microphotograph, reproduction on film, or electronic copy of a journal shall be deemed to be an original record for all purposes, including introduction in evidence in all courts or administrative agencies.
  14. Clarifies that a transcript, exemplification, facsimile, or certified copy of the journal, for all purposes recited in HRS 456-15, shall be deemed to be a transcript, exemplification, facsimile, or certified copy of the original record.
  15. Requires a Notary to promptly notify the Attorney General on discovering that the journal is lost or stolen.
  16. Provides that on resignation from, or the expiration, revocation, or suspension of, a Notary's commission, the Notary shall retain the journal in accordance with HRS 456-15 and inform the Attorney General where the journal is located.
  17. Provides that on the death or adjudication of incompetency of a current or former Notary, the Notary's personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to the Attorney General or a repository approved by the Attorney General.
  18. Provides that journals are subject to such reasonable periodic, special, or other audits or inspections by the department of the Attorney General, within or without Hawaii, as the Attorney General considers necessary or appropriate. 
  19. Provides that an audit or inspection of a journal may be made at any time and without prior notice.
  20. Authorizes the department of the Attorney General to copy, and remove for audit or inspection copies of, all records the department of the Attorney General reasonably considers necessary or appropriate to conduct the audit or inspection. 
  21. Provides that if any Notary fails to comply with HRS 456-15, then the Notary shall be subject to an administrative fine of not less than $50 nor more than $500.
  22. Repeals the prior administrative penalty of $500 for a Notary’s failure to surrender the Notary's record books to the Attorney General within 90 days of the end date of the commission, resignation, or removal from office.

Remote Online Notary Public Commission

  1. Provides that a person qualifies to be commissioned as a remote online Notary by: (a) satisfying the qualification requirements; (b) paying the application fee; and (c) submitting to the Attorney General an application in the form prescribed by the Attorney General that satisfies the Attorney General that the applicant is qualified.
  2. Authorizes the Attorney General to charge a fee for a remote online Notary Public commission application in an amount necessary to administer HRS 456-C (note: codified statute number not yet assigned).
  3. Requires the technology selected by a remote online Notary to perform notarial acts to conform to the Attorney General's standards developed under HRS 456-C (note: codified statute number not yet assigned).
  4. Requires a remote online Notary to forthwith file a literal or photostatic copy of the person's commission with the clerk of the circuit court of the circuit in which the remote online Notary resides.
  5. Clarifies that an individual commissioned as a remote online Notary by the Attorney General is a Notary Public for purposes of HRS chapter 456 and is subject to the requirements, powers, and duties of a Notary Public under HRS chapter 456.

Notarizations for Remotely Located Individuals

  1. Provides that a remotely located individual may comply with any requirement of Hawaii law to appear personally before or be in the presence of a Notary at the time of the performance of a notarial act by using communication technology to appear before a remote online Notary.
  2. Requires a remote online Notary located in Hawaii to verify the identity of the remotely located individual for a notarial act using communication technology by (a) personal knowledge of the identity of the individual; (b) satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the remote online Notary under HRS chapter 456 or HRS 456-B (note: codified statute number not yet assigned); or (c) obtaining satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing.
  3. Requires a remote online Notary to reasonably confirm that a document before the remote online Notary is the same document in which the remotely located individual made a statement or on which the individual executed a signature.
  4. Requires a remote online Notary, or a person acting on behalf of the remote online Notary, to create an audiovisual recording of the performance of the notarial act for a remotely located individual.
  5. Requires the document that is notarized for a remotely located individual located outside the United States using communication technology: (a) to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or (b) involve property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
  6. Authorizes a remote online Notary located in Hawaii to perform a notarial act using communication technology for a remotely located individual located outside the United States if the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  7. Requires a remote online Notary, or the remote online Notary’s guardian, conservator, agent, or personal representative (if the Notary is deceased) to retain the audiovisual recording or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. 
  8. Requires the audiovisual recording of a notarial act for a remotely located individual to be retained for a period of at least ten years after the recording is made.
  9. Requires the certificate of notarial act for a notarial act performed using communication technology that is required by HRS chapter 456 or other Hawaii law to indicate that the notarial act was performed using communication technology.
  10. Provides that a form of certificate of notarial act for a remotely located individual using communication technology and authorized by Hawaii law, including a certificate of acknowledgment provided in section 502-41, is sufficient if it complies with rules adopted under HRS 456-B or is in the form authorized by Hawaii law and contains a statement substantially as follows: "This notarial act involved the use of communication technology."
  11. Clarifies that an acknowledgment certificate under HRS 502-42 for a notarial act for a remotely located individual must indicate that the notarial act was performed using communication technology in the manner provided in HRS 456-B (note: codified statute number not yet assigned).
  12. Provides that before a remote online Notary performs their initial remote online notarial act, the remote online Notary must notify the Attorney General and identify the technologies that the remote online Notary intends to use. 
  13. Requires the technology selected by a remote online Notary to perform notarial acts for remotely located individuals to conform to the Attorney General’s standards developed for HRS chapter 456.
  14. Authorizes the Attorney General to adopt, amend, or repeal rules regarding the performance of notarial acts for remotely located individuals, including (a) prescribing the means of performing a notarial act involving a remotely located individual using communication technology; (b) establishing standards for communication technology and identity proofing; (c) Establishing requirements and procedures to approve providers of communication technology and the process of identity proofing; and (d) establishing standards and a period of retention of an audiovisual recording created under HRS 456-B (note: codified statute number not yet assigned).
  15. Authorizes a remote online Notary to charge a maximum fee of $25 to perform a notarial act for a remotely located individual, other than affixing a Notary’s certificate to a duplicate original.

Notarization of Electronic Records

  1. Authorizes a Notary to select one or more tamper-evident technologies to perform notarial acts with respect to electronic documents. 
  2. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic document with a technology that the Notary has not selected.
  3. Provides that before a Notary performs the Notary's initial notarial act with respect to an electronic document, the Notary must notify the Attorney General and identify the technology the Notary intends to use.

Validity of Notarial Acts

  1. Clarifies that except as otherwise provided in HRS 456-14, the failure of a Notary to perform a duty or meet a requirement specified in HRS chapter 456 does not validate or invalidate a notarial act performed by the Notary.
  2. Clarifies that the validity of a notarial act under HRS chapter 456 does not prevent an aggrieved person from seeking to invalidate the document or transaction that is the subject of the notarial act or from seeking other remedies based on law of the State other than this chapter or based on law of the United States.
  3. Clarifies that the validity extended to notarial acts under HRS 456-E does not validate a purported notarial act performed by a person who does not have the authority to perform notarial acts.

Miscellaneous

  1. Authorizes the registrar of conveyances to accept for recording under HRS chapter 502 a tangible copy of an electronic document containing a notarial certificate as satisfying any requirement that a document accepted for recording be an original, if the Notary executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic document.
  2. Clarifies that any administrative fines imposed on a Notary by the Attorney General constitutes a debt due and owing to the state of Hawaii.
  3. Makes technical changes.
Analysis:

Senate Bill 2275 is a patchwork of new changes to Hawaii’s Notary Public statutes. Many of the new provisions come from the Uniform Law Commission’s Revised Uniform Law on Notarial Acts. The new journal section, identification provisions, and remote online notarization provisions come from the RULONA. But in addition to these, there are other amendments to the statutes that do not derive from the RULONA. One notable change is the removal of penalties for not including in the “certification statement” for a notarial act a description of the document and a statement of the number of pages and date of the document. It is unknown at this time if these things will still be required in the certification statement. Another notable change is the provision now requiring a Notary seal used on a paper document to be a rubber stamp. An engraved seal embosser no longer will be allowed. The main ticket of this bill is the authorization for Notaries to obtain a commission as a remote online Notary and perform notarial acts for remotely located individuals. It appears Hawaii will require a separate commission to become a remote online Notary, even though the RULONA “notification” provisions are included in the bill. Note: The RULONA doesn’t require Notaries to obtain a separate commission to perform notarial acts for remotely located individuals using communication technology, but they do have to notify the commissioning official that they intend to do so and inform the commissioning official of the technology they will use.

Read the bill text.

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